Audit, Compliance and Risk Blog

Highly-publicized revelations about extensive workplace harassment have cost many alleged harassers their high-powered positions (including US Senator Al Franken), and are producing a variety of proposals to toughen standards. One of the first new provisions was enacted by the U.S. Senate on November 9. The Senate Anti-Harassment Training Resolution of 2017 (S.Res. 330) will require anti-harassment training in Senate offices. The Resolution applies to internal governance of the Senate, so does not apply to any other body, such as the House of Representatives (where House Resolution 630, requiring annual training by each member, officer and employee in employee rights, including anti-harassment and anti-discrimination, was passed on November 29 but is being reconsidered).

Who Requires Training?

Training requirements apply in each “covered office” in the Senate, which is defined as any “office, including a joint commission or joint committee." The Resolution requires two types of trainings. Provides for two types of trainings:

Training for everyone in a “covered position”

Every non-managerial person in a “covered position” must receive training that addresses “the various forms of workplace harassment, including sexual harassment, and related intimidation and reprisal that are prohibited under the Congressional Accountability Act of 1995.” Importantly, the Resolution defines “covered positions” to include not only jobs held by employees, but also interns and fellows – readers may remember that previous scandals have involved interns and “pages.”

Training for each “head of a covered office”

Separate training will be required for each “head of a covered office,” which means “the Senator [including ranking Senator on a joint commission or committee], officer, or Senate manager having final authority to appoint, hire, discharge, and set the terms, conditions, or privileges of the employment of the Senate employees employed by a covered office.”

What Training is Required, and When?

The Resolution does not specify the contents of required training, but both types of training must reference the prohibitions in the Congressional Accountability Act. That Act (2 U.S.C. 1301-1302) applies a number of federal labor laws to “covered offices,” including Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973, Americans with Disabilities Act, Age Discrimination in Employment Act, and Family and Medical Leave Act. Collectively these laws prohibit discrimination – which has generally been interpreted by regulators and courts to include “hostile workplaces” and harassment – on the basis of based on the following attributes:

Race

Color

Religion

Sex (or “gender”)

National origin

Age (40 and over)

Mental or physical disability, including pregnancy

Genetic information about the employee or a family member.

General training for non-managers must address “the various forms of workplace harassment, including sexual harassment, and related intimidation and reprisal that are prohibited under the Congressional Accountability Act of 1995.” Training for heads of offices must go further, and address “the various forms of workplace harassment, including sexual harassment, and related intimidation and reprisal that are prohibited under the Congressional Accountability Act of 1995 and [the trainee’s] role in recognizing and responding to harassment and harassment complaints.”

Everyone covered as of November 9 must receive their initial training within 60 days, and everyone joining a covered office after that date must receive training within 60 days after joining. An exception is available for anyone who has already received training in these topics since the 115th Congress began on January 3, 2017. After initial training, each individual will require refresher training during each subsequent Congress, i.e., approximately every two years.

The Resolution authorizes the Senate Committee on Rules and Administration to issue regulations or guidance if it determines them necessary. As of this writing, the Committee has not reacted.

What State Training Models are Available?

Beginning in 1991, at least 11 states and territories require anti-harassment training, for at least some employers. Requirements tend to be similar. For example:

Maine requires that general employee training include the following topics:

Definition of sexual harassment under federal and state laws.

Illegality of sexual harassment.

Descriptions of sexual harassment, including examples.

Employer’s internal complaint procedures.

How to contact the Maine Human Rights Commission for legal recourse or complaints.

Definitions of unlawful harassment, discrimination and retaliation under California and federal law.

Steps to take when harassing behavior occurs in the workplace.

How to report harassment complaints.

How to respond to a harassment complaint.

The employer’s obligation to investigate harassment complaints.

What constitutes retaliation, and how to prevent it.

Essential components of an anti-harassment policy.

The effect of harassment on harassed employees, co-workers, harassers and employers.

In a growing number of jurisdictions, these training requirements are part of broader anti-discrimination program requirements applicable to at least some employers. For example, I discussed requirements and agency guidance in California here.

Self-Assessment Checklist

Does the organization have anti-harassment policy(ies) and procedure(s) in place?

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).